Pa. SC won't meddle with Philly forum-shopping

The Pennsylvania Supreme Court will not intervene in the Philadelphia courts system, which a pharmaceutical company says is actively encouraging out-of-state lawsuits.

Bayer, the maker of the birth control pill Yaz, asked the court in November to use its King's Bench powers on Philadelphia's Complex Litigation Center. Yaz litigation is one of the mass tort programs overseen by the CLC.

Attorneys for Bayer said the CLC has encouraged the filing of out-of-state lawsuits in order to increase money brought in through filing fees, resulting in a system wherein 85 percent of the more than 1,600 Yaz cases were filed by plaintiffs who do not live in Pennsylvania, did not receive their prescriptions in Pennsylvania and were not treated in Pennsylvania.

On Wednesday, the court, without comment, issued an order declining to use its King's Bench powers.

"The Philadelphia Court of Common Pleas should not... be a national dispute resolution forum," Bayer's attorneys wrote. "The claims of Pennsylvania's citizens should not be queued up behind the cases of thousands of foreign plaintiffs who have no connection to this commonwealth.

"Moreover, the program should not be marketing itself as an attractive venue to plaintiffs from around the country because that is prejudicial to defendants. The program's relaxed and legally erroneous view of forum non conveniens, which encourages foreign plaintiffs to file in Philadelphia, puts defendants in the position of defending claims where all relevant evidence is somewhere other than Pennsylvania."

It's certainly not the first time the CLC has been criticized. In the past two years, the American Tort Reform Foundation named it the No. 1 Judicial Hellhole in its annual report, expressing the same concern that the CLC has actively encouraged the filing of lawsuits.

State Rep. Bryan Cutler introduced legislation last year designed to end venue shopping. It was re-committed to the House Appropriations Committee on Dec. 12.

As originally crafted, the bill would have forced all personal injury lawsuits to be filed in the county where the respective cause of action first arose. In other words, if a plaintiff allegedly became injured at a business in Lancaster County, he or she would have to file in that county's court of common pleas.

But Cutler decided to revise the bill to allow for filings to occur in the counties in which the respective causes of action arose, the counties in which the plaintiffs reside or the counties in which the defendants are headquartered.

Oftentimes, a business might be headquartered in one county, but still conduct operations in another.

Cutler said an example would be the business owner he spoke to who is based in Montgomery County, and learned of a slip-and-fall incident taking place on his commercial property in Montco, but then finding out that a lawsuit was filed in Philadelphia because the company also conducts business out of the City of Brotherly Love.

Philadelphia's Court of Common Pleas is often viewed as a goldmine to plaintiff's attorneys, according to a report released in October by George Mason University School of Law economics professor Joshua D. Wright.

The empirical study concludes that Philly's civil court system is attractive to plaintiffs from outside of the city, often at the expense of local consumers and businesses.

This leads to "disproportionate litigation and verdicts relative to other courts," the study claims.

In part, the study found that Philadelphia plaintiffs are less likely to settle than plaintiffs in other state jurisdictions, Philadelphia plaintiffs are disproportionately likely to prefer jury trials, and Philadelphia plaintiffs are more likely to get sympathetic juries.

Bayer said the state Supreme Court must use its power to clarify what lawsuits are subject to Philadelphia's jurisdiction and which are not. They were appealing nine motions to dismiss that were not granted.

The plaintiffs in those lawsuits resided in the states of New Jersey, Mississippi, Kentucky, Oklahoma, Georgia, Virginia, Oregon and North Carolina. Bayer Pharma AG is a German company.

Bayer HealthCare Pharmaceuticals has its principal place of business in New Jersey and is responsible for marketing and promotion in the United States. Bayer Corp. was added as a defendant in the lawsuit because it has a principal place of business in Pennsylvania, thus giving plaintiffs a reason to file in Philadelphia, the company said.

"Bayer Corporation has never manufactured, marketed or sold Yasmin or Yaz," the company says. "Instead, Bayer Corporation is a holding company... Since Jan. 1, 2003, it has not conducted any pharmaceutical business."